In the last few years, Pennsylvania’s courts have taken an active role in defining the propriety and scope of the state’s sex offender registration program. Following on the heels of a December 2014 decision striking down sex offender registration for juveniles, the Pennsylvania Supreme Court recently agreed to hear a sweeping challenge to the retroactive application of Pennsylvania’s adult sex offender registry. The new law, generally referred to as SORNA (Sex Offender Registration and Notification Act), took effect on December 20, 2012 as part of an effort to comply with the federal laws governing sex offenders. SORNA replaced a more lenient registration scheme where the majority of people convicted of sexual crimes had to register for only ten years. SORNA changed the paradigm and drastically increased the number of people included on the registry, the time periods for which they would have to register, and the number of things they have to report. Of the close to 19,500 people on the registry today, roughly three quarters have to register for the rest of their lives without any chance of removal.
In addition to making most offenders lifetime registrants, SORNA reclassified thousands of people who were ten year registrants under the old law and retroactively increased their terms of registration – in most instances to life. Hundreds of registrants sued, raising a number of different challenges to the law. Until now, the Pennsylvania Supreme Court has refused to get involved.
Vermonter Rich Cassidy, who chairs the CCRC Board, drew our attention to this extraordinary story of courage and compassion and plain good sense in the Green Mountain State. Published last week in the Vermont weekly Seven Days, it tells the story of LaMoille County Sheriff Roger Marcoux Jr.’s decision to take a chance on Timothy Szad, described as “a gifted carpenter and diligent worker” who is also “Lamoille County’s most notorious criminal.”
Here are a few introductory paragraphs to a story well worth reading in full.
In 2000, Szad stalked and sexually assaulted a 13-year-old boy in the southern Vermont woods. He went to jail for his crime and served the maximum sentence. But his punishment didn’t end when he got out, in 2013. His release was widely publicized, which generated something of a vigilante reaction. So he embarked on a cross-country journey in search of a new home. When no place would have him, he wound up back in Vermont — this time, in sleepy Hyde Park.
The Cumberland County (Pennsylvania) Sentinel recently published a series of articles by Joshua Vaughn that examine the operation and effect of sex offender registration laws from a variety of perspectives. We summarize the articles with links to the Sentinel’s website.
Finding statistics to fit a narrative
Vaughn traces the “frightening and high risk of recidivism” for untreated sex offenders that Justice Kennedy used to support the Supreme Court’s holdings in McKune v. Lile (2002) and Smith v. Doe (2003) to an unsourced “anecdotal quip” in a 1986 article from Psychology Today suggesting sex offender recidivism rates as high as 80%. That figure found its way into a Justice Department practitioner’s guide for treating incarcerated sex offenders, which in turn was cited by the Solicitor General’s amicus brief in McKune. Vaughn, asking how such a questionable statistic could turn out to be a “linchpin fact” in two extremely influential Supreme Court cases, proposes that the Court relied on the Solicitor General, who in turn relied on the practice guide without doing his own research.
Vaughn reports that the Justice Department “now states on its website that the rate at which released sexual offenders are rearrested for new sexual offenses is as low as 3 to 10 percent,” evidently referring to a report of the Bureau of Justice Statistics.
A federal judge in the Northern District of California has declined to block enforcement of the so-called “Scarlet Letter” provision of the recently-enacted International Megan’s Law (IML). U.S. District Judge Phyllis Hamilton ruled on April 12 that a challenge to the requirement that sex offenders’ passports be marked with a unique identifier was not ripe for injunctive relief, “because significant steps must be taken before the passport identifier can be implemented,” and because “it is unclear how the provision will be implemented.” The court also held that the plaintiffs did not have standing to challenge a separate IML provision requiring notification of a registered sex offender’s intended foreign travel.
Respecting the IML passport identifier provision, the court pointed out that
the statutory language makes clear that no such requirement is yet in effect, and that it will not take effect until after the Secretaries of Homeland Security and State and the Attorney General have developed a process for implementation, submitted a joint report to Congress regarding this proposed process, and, finally, certified that the process has been successfully implemented. See IML §§ 8(f), 9(a)-(b).
On April 6, Arizona became the latest state to offer early relief from sex offender registration obligations to young people convicted of consensual sex offenses and sentenced to probation. The law, HB 2539, allows individuals convicted before reaching age 22 of sexual conduct with a minor between the ages of 15 and 17 (so-called “Romeo and Juliet” offenders), to petition the court for relief from registration after completing probation. If a petitioner meets all applicable criteria, the court must grant the petition unless it finds that a “denial is in the best interests of justice or tends to ensure the safety of the public.” Similar laws authorizing early termination from registration for those convicted of youthful consensual offenses are in effect in ten other states, including Florida, Oregon, and Michigan.
Laws requiring young people to register have come under increased scrutiny thanks to recent media coverage of their harsh effects and flimsy justifications — notably an article by Sarah Stillman published last month in the New Yorker (“The List”). Much of the attention to registry of juveniles has been driven by mobilization around the issue by advocacy groups like Reform Sex Offender Laws (RSOL) and the Center on Youth Registration Reform (CYRR). In 2013, Human Rights Watch issued a ground-breaking report on the issue, Raised on the Registry.
Last week a federal judge heard the first arguments in a lawsuit challenging certain provisions of the recently-enacted International Megan’s Law (IML),* including one mandating that the passport of any American required to register for a sex offense involving a minor be marked in “a conspicuous location” with a “unique identifier” of their sex offender status. Other challenged provisions of the law authorize the Departments of Homeland Security and Justice to notify destination nations of forthcoming visits from those individuals. On Wednesday the court heard a motion for a preliminary injunction that would block enforcement of the challenged provisions of the law pending the suit’s final outcome. See Doe v. Kerry, Case 3:16-cv-00654 (N.D. Ca.).
Searching for information on whether people with a criminal record may encounter problems traveling to Mexico, we found nothing relevant on the website of the Mexican Embassy in the U.S.. The State Department website contains only a very general warning:
Prior Criminal Convictions: U.S. citizens should be aware that Mexican law permits immigration authorities to deny foreigners entry into Mexico if they have been charged or convicted of a serious crime in Mexico or elsewhere.
However, the website of the Mexican Embassy in Canada explains Mexico’s policy in somewhat greater detail, listing the crimes that are likely to result in a refusal of entry:
It appears that Mexico has inaugurated a policy of refusing entry to anyone registered in the United States as a sex offender. While no formal policy has been announced, the body of anecdotal evidence supporting the existence of an informal policy is growing. In numerous internet postings, vacationers report being turned back at the border or forced to take the next plane home, leaving their families behind. There is no indication that people with other convictions are being similarly excluded. The Mexican government’s new policy has been made technologically feasible by new federal data-sharing policies, including the Dru Sjodin National Sex Offender website maintained by the Justice Department’s SMART Office. Members of the public may now do a free national search of all state sex offender registries, as well as all registries maintained in Indian country. We will continue to monitor this situation, and watch for reports about exclusionary policies from other countries.
We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law. This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,” discussed on this site on April 15. The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary. But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.
We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals. Read more
Update (5/14/15): We have published a 50 state chart detailing relief from registration requirements on the Restoration of Rights page. The chart is based in part on Wayne Logan’s work. You can find the chart at this link.
There has been a lot of discussion about how one gets ON a sex offender registry. Now Wayne Logan has given us a fascinating study of what it takes to get OFF in different U.S. jurisdictions. His article, forthcoming in the Wisconsin Law Review, is a must-read for any practitioner, and a helpful guide to law reformers in many jurisdictions. Its title is “Database Infamia: Exit from the Sex Offender Registries,” and its abstract follows:
Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means. Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships. This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.